Guarantee Clause
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.This section is called the Guarantee Clause, because by its terms the federal government makes certain guarantees to the states. One of these—protection from foreign invasion—continued Congress's prior obligation under the Articles of Confederation. This guarantee is a part of the larger
Article IV, Section 4
doctrine, reflected in both the Articles and the Constitution, that although the federation may be decentralized internally, it is to have a common foreign policy and present a unified face to the outside world.
The other principal guarantee in Article IV, Section 4, is that the federal government will assure the states "a Republican Form of Government." The guarantee of protection from domestic violence may be treated as part of the republican guarantee. The assurance of a republican form did not appear in the Articles of Confederation. Participants in the Constitutional debate of 1787–1788 expressed varying views over exactly what constituted the "Republican Form" of government. However, there was a consensus as to three criteria of republicanism, the lack of any of which would render a government un-republican.
The first of these criteria was popular rule. The Founders believed that for government to be republican, political decisions had to be made by a majority (or in some cases, a plurality) of voting citizens. The citizenry might act either directly or through elected representatives. Either way, republican government was government accountable to the citizenry. To a generation immersed in Latin learning and looking to pre-imperial Rome for inspiration, a republic was very much res publica—the people's affair.
The second required element of republican government was that there be no monarch. The participants in the constitutional debates believed that monarchy, even constitutional monarchy, was inconsistent with republican government. In fact, when Alexander Hamilton proposed a President with lifetime tenure, the delegates so disagreed that they did not even take the time to respond.
The third criterion for a republic was the rule of law. Ex post facto laws, bills of attainder, extreme debtor-relief measures—most kinds of retroactive legislation, for example, were deemed inconsistent with the rule of law, and therefore un-republican.
Many participants in the post-Convention debates (such as James Iredell of North Carolina) suggested an additional criterion of republicanism: absence of a titled aristocracy. This criterion was not part of the consensus; other participants observed that some previous republics (e.g., pre-imperial Rome) and some contemporary republics (e.g., Holland) featured titled aristocracies. Indeed, the most influential contemporary foreign political writer, Baron de Montesquieu, had divided republics into aristocratic and democratic varieties. To assure, therefore, that the American states remained more purely democratic republics, the drafters of the Constitution inserted Article I, Section 10, which forbids states from conferring titles of nobility.
It is sometimes claimed that the Founders wanted American governments to be "republics rather than democracies," but this claim is not quite accurate. In their linguistic usage, the Founders employed the terms "democracy" and "republic" with overlapping or even interchangeable meanings. Only one species of democracy was deemed inconsistent with republicanism. This was "pure democracy" or "simple and perfect democracy," a theoretical constitution identified by Aristotle and mentioned by John Adams and James Madison, among others. A pure democracy had no magistrates, because the "mob" made all decisions, including all executive and judicial decisions. The Founders saw this kind of democracy as inconsistent with republicanism, because it did not honor the rule of law. The Guarantee Clause's protection against domestic violence assures orderly government and the rule of law, and protects the states' legitimate magistracy against mob rule.
The primary purpose of the Guarantee Clause, however, was not protection against pure democracy but against monarchy. Based on precedents in ancient Greece, the drafters feared that kings in one or more states would attempt to expand their power in ways that would destabilize the entire federation. Having republican government in each state was deemed necessary to protect republican government throughout the United States.
There is not much federal case law on the Guarantee Clause, primarily because in the 1849 case of Luther v. Borden, the Supreme Court declared in dictum that enforcement of the clause is a political question for Congress and not a justiciable issue for the courts. With one minor deviation, the Supreme Court has continued to adhere to this doctrine. Examples are the Court's decisions in Pacific States Telephone & Telegraph Co. v. Oregon (1912) and Baker v. Carr (1962). Thus, citizens of a state who believe their state's government is no longer republican should apply to Congress for relief rather than to the courts. It has been established, however, that congressional admission of a state to the union legally implies that the state's then-existing constitution satisfies the Guarantee Clause. Yet the clause does not freeze that state constitution into place, but allows states wide latitude to innovate, so long as they retain the three basic elements of the republican form.
There has been somewhat more Guarantee Clause activity in state courts. Most have arisen when opponents of direct citizen lawmaking (initiative and referendum) argue that it violates the "republican form" for voters to legislate directly rather than through representatives, even though early in our history states often passed resolutions instructing their representatives on how to vote on certain issues. The Delaware Supreme Court accepted that argument in Rice v. Foster (1847). However, numerous citations from the Founding era indicate that this argument is erroneous, and it has been rejected entirely or in part by all other state courts considering the issue. Examples include the supreme courts of Oregon, Kadderly v. City of Portland (1903), of Colorado, Bernzen v. City of Boulder (1974) and other cases, and of Washington, Hartig v. City of Seattle (1909).
The other portion of the clause declaring that the United States shall protect each state "against Invasion" was designed by the Framers to prevent a sectional president from refusing to defend certain parts of the nation from foreign attack. As St. George Tucker noted, the provision guarded against "the possibility of an undue partiality in the federal government in affording it's [sic] protection to one part of the union in preference to another, which may be invaded at the same time." There has been, however, no occasion when that section has been invoked.
- Robert G. Natelson
- Senior Fellow in Constitutional Jurisprudence
- Independence Institute
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